Prenuptial Agreements in Talmudic, Medieval, and Modern Jewish Thought Jonathan Reiss and Michael]. Broyde

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0 NE OF THE QUESTIONS frequently posed in contes~ed divorces is how to assess the value of a ketubah, the marriage contr~ct that serves as an indispensable part of every Jewish wedding. Pe<:>ple generally

understand that the ketubah describes the Jewish law obligations of a hus-band toward his wife during marriage, as well as his financial obligations upon death or divorce. For example, the standard form ket1-s'bah states that the husband obligates himself to pay his wife 200 zuz as well as 200 zekukim of silver upon death or divorce. However, many people view the ketubah more as a quaint symbol of the marriage ritual rather than as a legally enforceable document. What happens, however, when one party seeks to enforce their ketubah rights?

This chapter will explore three different issues related to enforcing ketubot.1 The first is the value-in dollars-of the payments mentioned in the ketubah. The second is whether the ketubah is still: an enforceable agreement in cases of divorce according to Jewish law, in light of Rabbeinu Gershom's ban on coerced divorce. Finally, this chapter discusses whether a ketuhah creates a contract legally enforceable in American law.

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THE DOLLAR VALUE OF THE KETUBAH

Zuzim, Zekukim, and Dollars

The ketubah recounts the following recitation of obligations by the husband:

Be thou my wife in accordance with the laws of Moses and Israel, and I will work, honor, support, and maintain you in accordance with the practices of Jewish husbands who work, honor, support, and maintain their wives in faithfulness. And I will give you 200 zuz as dowry for your chastity which is due to you under the law of the Torah as well as food, clothing, needs, and cohabitation according to the way of the world. 2

The Talmud makes clear mention of the fact that the standard amount of money in a ketubah was 200 zuz for a first marriage.3

The amount of 200 zuz is equivalent to 50 shekalim in the Jewish mon-etary system.4 Each shekel is generally valued at approximately 20 grams of silver,5 so that 200 zuz, strictly speaking, should equal the value of about 1000 grams of silver, or one kilogram (2.2 pounds) of silver.6 0ther halakhic (Jewish law) authorities posit an even lower amount as many Sephardic authorities rule that the ketubah can be paid in diluted silver (called kesef ha-medinah, commercial grade silver) which might only contain as little as 120 grams of silver in 200 zuz? Thus, if the ketubah is valued by the silver content of 200 zuz, it is a paltry amount.R

The standard Ashkenazi ketubah also recounts as follows:

The dowry that she brought from her father's home in silver, gold, ornaments, clothing, household furnishing, and her clothes amount-ing in all to the value of 100 zekukim of pure silver, the groom has taken upon himself. The groom has also consented to match the above sum by adding the sum of 100 zekukim of pure silver making a total in all of 200 zekukim of pure silver.

Based on this recounting of the pre-agreed upon value of the assets of the wife, Ashkenazi halakhic authorities concluded that it would be more appropriate to value the ketubah in accordance with his understanding of the value of the "200 zekukim of pure silver" that are added in every standard ketubah in addition to the base amount of 200 zuz that is the husband's obli-gation, as this amount also needs to be returned to the wife upon divorce.9

194 JoNATHAN REiss AND MICHAEL J. BROYDE

However, zekukim is not a talmudic term, and there is quite ~ bit of dis-agreement as to what it means and what coin it refers to. Rdbbi Moses Feinstein places the value of 200 zekukim of silver at 100 pou~ds of silver (approximately 45.5 kilograms). 10 A similar such view can be f~und in the rulings of Rabbi Abraham Isaiah Karelitz 11 who posits that the v~lue is closer to 127 pounds of silver (approximately 57 kilograms). 12 Both o~ these views assume that the term zekukim is a reference to a large medieval ~oin of con-siderable value. Each zakuk weighs half a pound or more. I

There are at least two other viewpoints concerning the vaiJation of the 200 zekukinz of silver described in the ketubah: the first is tbat of Rabbi I:Iayyim Na'eh, 13 who ruled that the value of 200 zekukim is 8j5 pounds of silver (approximately 3.85 kilograms). 14 Yet others have posited ~hat the term zekukim reflects some other coin, and 200 zekukim are valued* between 10 and 14 pounds of silver. 15 Many Sephardic decisors posit ~hat the 200 zekukim can be paid with diluted silver, thus drastically reducing the amount that needs to be paid. 16

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Once we value the ketubah based on no more than 200 z}kukim of sil-ver and follow the view of Rabbi Feinstein or Rabbi Karelitz cpncerning the amount (rather than focusing on the base amount of200 zuz),/most decisors generally follow the view of the author of the Beit Shmu'el 17 t/hat we do not

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separately add the value of the base ketubah obligation of 200 fUZ to our cal-culation but rather consider everything included in the 200 tekukirn of sil-ver, since the face value of 200 zuz, as noted earlier, represen* such a paltry amount in comparison to 200 zekukim that it is considered t~ be subsumed within that amount (although it may be appropriate to add the 200 zuz sep-

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arately if the view of Rabbi I:Iayyim Na' eh is adopted) .18 I One final view is worth noting. The Mishnah and the Jeru$alem Talmud19

indicate that the base amount of"200 zuz" is meant to correspond to a year's worth of support for a single person.2°Commentators Rabbi ~amson of Sens and Rabbi Obadiah Bertin oro state explicitly, "One who hasf 200 zuz cannot take charity, as this amount [ 200 zuz] is the cost of food apd clothes for a year." 21 Based on this understanding of the function of 20b zuz as a year's support, it has been the practice of a number of rabbinic trfbunals to assess the 200 zuz in the ketubah in accordance with the amount qf contemporary currency that would reasonably correspond to one year's su~port even if this amount is far in excess of the formal value of the silver coi~age described in the ketubah document itself.22 By this measure, all Jewish~1law weights and measures change, as it is their food-and-goods purchasin power (in dol-lars) that the talmudic rabbis focused on, and not their sil er content.23 The silver coins used in the ketubah represented certain values ~orresponding to

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different purchasing power, but did not necessarily establish a fixed v lue for all time based on the worth of the silver alone. Therefore, some decisors have concluded that, irrespective of the current value of silver, the val e of the ketubah should be equivalent to one year's support.24

A Sample Calculation in Dollars j A troy ounce of 99.9 percent silver was worth approximately $4.6 on August 6, 2002, in the New York City silver spot market, and this can be sed to calculate the value of a ketubah, according to the various views.25 ThJe net cost on that day for actual delivery of one ounce of pure silver was a out $5.60 per ounce.26

1. The current value of the ketubah (zuzim plus zekukim) accordin to Rabbi Karelitz (l;Iazon Ish) would be approximately $10,263.

2. The current value of the ketubah (zuzim plus zekukim) accordin to Rabbi Feinstein would be approximately $8,192.

3. The current value of the ketubah (zuzim plus zekukim) accordin to Rabbi I:Iayyim Na'eh would be approximately $693.

4. The value of 200 zuz alone27 would be approximately $180.28

5. The value of the ketubah as one year's support would be betw en $15,000 and $55,000.29

Each of these amounts (except for the last) would be reduced by percent according to those Sephardic authorities who allow for diluted sil-ver (kesefha-medinah), which is only one-eighth silver (although nearl no Ashkenazic decisors accept this view).30

How to Rule on This Dispute

Given the diversity of views found in the normative halakhah, whose v ew should be followed? Three different answers to that question exist.

One view is that matters of ambiguity in a document are decided aga nst the one who is seeking enforcement. Thus Rabbi Ovadia Yosef and Ra bi Joseph Kapach adopt the view that the woman receives the lowest amo nt plausible, as she bears the burden of proof, which she cannot meet.31 (A s'm-iiar such view is suggested by Rabbi I:Iayyim Zimbalist of the Israeli Rabbin cal Court of Appeals in a letter to a member of the Beth Din of America.) 32

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Another possible answer is accepted by Rabbi Mordechai Eliyahu, v.j-ho posits that normative Jewish law accepts the view of Rabbi Feinstein ~nd

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Rabbi Karelitz (lfazon Ish), and that a ketubah is worth about 1 ~0 pounds of silver. 33 Indeed, a strong claim could be made that min hag Ash~enaz (the custom of European-based Jewry) is to follow this view, and it is onl)1 Sephardic decisors (such as Rabbis Yosef and Kapach, above) who reject tbis view.34

For that reason, all Ashkenazi ketubot make clear reference to the 2~0 zekukim standard, rather than the Sephardic practice of varying the amount depend-ing on the woman a.nd man. .

Another possible answer is that matters of interpretation have ~ local con-text, particularly in words such as zekukim that are ill defined, and that local custom should be followed on these matters; in America, this is a s~rong argu-ment to follow the view of Rabbi Feinstein in evaluating the kef!ubah, inas-much as Rabbi Feinstein was the preeminent decisor for Ameriqan Jewry.35

This view is additionally supported by the basic talmudic pt/inciple that the purpose of the ketubah was to mandate payments in case~ of divorce high enough so that a man would not hastily divorce his wife. *ayments of $25, $100, or even $1,000 hardly accomplish this talmudi~ mandate. Consistent with this notion, it is noteworthy that Rabbi Feinstdn dismissed the European practice of evaluating the ketubah at 75 rubles ~ecause this sum would be laughably small nowadays.36

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All of this, however, assumes that the ketubah is of worth 1in resolving financial disputes related to divorce. As explained below, that lis subject to dispute.

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Is A KETUBAH ENFORCEABLE AS A MATTER OF }EW~SH LAW?

Talmudic Rules

The intrinsic nature of marriage and divorce in Jewish law is 4ifferent from that of any other mainstream legal or religious system in that e~try into mar-riage and exit from marriage through divorce are private con~bctual rights rather than public rights. Thus, in the Jewish view, one does n~t need a gov-ernmental "license, to marry or divorce. Private marriages al·e fundamen-tally proper, and governmental or even hierarchical ( witl/lin the faith) regulation of marriage or divorce is the exception rather tharl the ruleY

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This view of entry into and exit from marriage as contraqtual doctrines is basic and obvious to those familiar with the rudiments of t~lmudic Jewish law. While the Talmud imposes some limitations on the p~·ivate right to marry (such as castigating one who marries through a sexuai4ct alone, with-out any public ceremony )38 and the Shul~an 'Arukh imposes/ other require-

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ments (such as insisting that there be an engagement period), 39 basic J~wish law treats entry into marriage as one of private contract requiring thd con-sent of both parties.40 ·

Exit from marriage was also purely contractual (except in ca$es of fault), but according to Torah law, was a unilateral contract that di~ not require the wife's consent. Thus, according to unmodified Torah lavy, exit from marriage was drastically different from entry into marriage. D~vorce did not require the consent of both parties. The marriage could end ( a.bsent fault) when the husband alone wished to end it. Marriage was imbal~nced in other ways as well; a man could be married to more than one wif~, any of whom he could divorce at will, whereas a woman could be man·led to only one man at a time, and she had no clearly defined right of exit, per-haps other than for fault.

From ancient times, and according to some authorities, in somd mar-riages even according to Torah law, the husband's unrestricted right to divorce was curtailed through contractarian means, the ketubah.t 1 The ketubah was a premarital contract agreed to by the husband and wife that contained terms regulating the conduct of each party in the marria$e and discussing the financial terms should the marriage dissolve through ~ivorce or death. 42 While the ketubah does not explicitly restrict the unilatera~ right of the husband to divorce his wife for any reason, it does impose a s~gnifi­cant financial obligation on the husband should he do so without c4use-he must pay her a considerable amount of money. Indeed, the T~lmud readily states that the ketubah was instituted so that "it will not ~e easy [cheap l for him to divorce her."43 In addition, and more significan~ly, the Talmud mandates that the couple may not commence a marital (sbual)

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relationship unless both the husband and wife have agreed on the proyisions of the ketubah and one has been executed.44

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Thus, while the right to divorce remained unilateral with the hufband, with no right of consent by the wife, it was now restricted by a clear: finan-cial obligation imposed on the husband to compensate his wife if hk exer-

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cised his right to engage in unilateral divorce (absent judicially d~clared fault on her part). 45 There are even views among the rishonim (m¢dieval Jewish law authorities) that if the husband cannot pay the financial ~bliga­tion, he is prohibited from divorcing her except in cases of fault. 46 !indeed, the wife, as a precondition to entry into the marriage, could insi~t on a ketubah payment higher than the minimum promulgated by the rdbbis."7 Of course, divorce could be by mutual consent, subject to whateveti agree-ment the parties wished.

198 }ONATHAN REISS AND MICHAEL J. BROYDE

Thus in talmudic times, the economic rules for divorce wlre as follows:

1. The husband had a unilateral right to divorce and had to pay a pre-agreed upon amount to his wife (agreed to in the ketu ah, but never less than 200 zuz) upon divorce, except in cases of fauk

2. There was divorce by mutual consent with paymenl to be deter-mined by the parties. /

Consequently, in a case where the husband wanted to divor e his wife, he could do so against her will and pay her the ketubah. She cou d not, absent default, sue for divorce as a general rule,48 although she c uld perhaps restrict his rights through a ketubah provision.49

The Impact of the Ban of Excommunication of Rab Gershom Concerning Coerced Divorce and Polyga

In the eleventh century Rabbeinu Gershom, through his ban on polygamy and forced divorce, changed the basic Jewish law in divorce. The decree of Rabbeinu Gershom50 was enacted for a variety of reasons, a din order to equalize the rights of the husband and wife to divorce, it w s necessary to restrict the rights of the husband and prohibit unilateral no-£ ult divorce by him. 51 Divorce was limited to cases of provable fault or rnut al consent. In addition, Rabbi Jacob ben Meir Tam posited, and the norma ive Jewish law accepted, that fault was narrowed to exclude cases of sof fault such as unprovable repugnancy, and in only a few cases could the h sband be actu-ally forced to divorce his wife or the reverse. 52

Equally significant, the decrees of Rabbeinu Gersh m prohibited polygamy, thus placing considerable pressure on the man in marriage that was ending to actually divorce his wife, since not only w uld she not be allowed to remarry, but neither would he. 53 According to her m de-Rabbeinu Gershom, Jewish law now permitted divorce only through utual consent or fault on either part.

Since the promulgation of the ban in the name of Rab against divorcing a woman without her consent or witho hard fault, the basic issue of the value of the ketubah itsel has come into question. 54 As the talmudic rabbis instituted the ketubah p yments so as to deter the husband from rashly divorcing a wife, the basic va ue and purpose of the ketubah in cases of divorce is limited to cases where t e husband can divorce his wife without her consent, and yet has to Ph the ketubah. However, in cases where the husband cannot divorce his vrife without her

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consent, there is no need or purpose to a ketubah. For example, Maim nides and Shul~atl 'Arukh both agree that when a man rapes a woman an thus has to marry her if she wishes to marry him, and may not divorce her there is no ketubah payment. 55 Shul~an 'Arukh states in such a case:

A man who rapes a woman who is a virgin is obligated to marry h , so long as she and/or her father wish to marry him, even if she is cri -pled or blind, and he is not permitted to divorce her forever, exce t with her consent, and thus he does not have to write her a ketubah. f he sins, and divorces her, a rabbinical court forces him to remarry her. 6

The logic seems clear. Since he cannot divorce her under any circums ances without her consent, the presence or absence of a ketubah seems tom keno difference to her economic status or marital security. When they w nt to both get divorced, they will agree on financial terms independent f the ketubah, and until then, the ketubah sets no payment schedule. Shou d she insist that she only will consent to be divorced if he gives her $1,000, 00 in buffalo nickels, they either reach an agreement or stay married. The ke ubah serves no economic purpose in divorce.57

This case stands in clear contrast to the standard marriage in tal udic times. In such a marriage, prior to being wed the husband and wife n goti-ated over the amount the husband would have to pay the wife if he di orced her against he.r will or he died. She could not prevent the husband from divorcing her, except by setting the payment level high enough that th hus-band was economically deterred from divorce by dint of its cost.

All this changed in light of the two decrees of Rabbeinu Ger hom. Rabbeinu Gershom decreed that a man may not divorce his wife wi hout her consent, except in cases of serious fault on her part, and a man m y not marry a second wife under any circumstances. The net effect of the e two decrees was to impose a form of parity of rights in a marriage. Neith r the husband nor the wife could ever compel divorce, except in cases of fau , and in cases of fault both could. 58

What then is the purpose of the ketubah in cases of divorce after t on polygamy and unilateral no-fault divorce? Rabbi Moses Isserles ( provides an important answer. He states in the beginning of his disc of the laws of ketubah:

See Shul~1a11 'Antkh, Even ha- 'Ezer 177:359where it states that in a sit -ation where one only may divorce with the consent of the woman, o e does not need a ketubah. Thus, nowadays, in our countries, where" e

200 JoNATHAN REISS AND MICHAEL}. BROYDE

do not divorce against the will of the wife because of the! ban of Rabbeinu Gershom, as explained in Even ha- 'Ezer 119, it is possible to be lenient and not write a ketubah at all; but this is not the cus~om and one should not change it.60

Almost all of the classical commentators disagree with this gloss of Rabbi Isserles and rule that one still needs a ketubah even afte~· the ban of Rabbeinu Gershom, although such is not required in cases of:rape. Rabbi Moses ben Isaac Lema of Krakow in his Ifelqat Mehoqeq (1770), Rabbi Samuel ben Uri Shraga Feibusch in his Beit Shmu'el (1794), and Rabbi Elijah ofVilna in his glosses (1819) on the ShuliJan 'Arukh all state that one should not rely on this view, as one could distinguish between a rabbinic ban and a Torah prohibition to divorce.61 Rabbi Judah Rosens in his Mishn~h la-Melekh commentary on Maimonides posits that since there was a rabbinical decree mandating a ·ketubah, latter rabbinic authorities are incapable :of repealing that obligation, and thus Rabbi Isserles ought not be relied on1, even as the ketubah serves no clear purpose anymore, as we are powerless to change the talmudic decree mandating a ketubah even as it no longer s¢rves its pur-pose in cases of divorce. 62 ·

Rabbi Shlomo Reisner in his Avnei Mishpat (1902) 63 argu¢s that Rabbi Isserles's central analogy is incorrect, in that the ketubah serv,es a purpose in the case of widowhood; the talmudic sages did not decree a ketubah even in the case of widowhood in the case of a rape victim whq, marries the rapist, as the mandatory payment of 50 shekalim directed by,the Torah as his punishment was equal (not by coincidence, either, it is clairped64), to the value of the ketubah. So too the ketubah establishes rights in the marriage itself that can be enforced, and death benefits, and effects rights in cases of halitsah (levirate separation) as well. 65 ,

Indeed, the custom and practice is not to follow the possibi~ity suggested by Rabbi lsserles,66 without other lenient factors present as welll67 Thus every Jewish wedding still starts with a ketubah, as Rabbi Isserles himself notes to be the custom.

However, no one argues with the basic economic asser~ion of Rabbi Isserles: the purpose of the ketubah written to impose a cost or) the husband for divorce-so that he should not divorce his wife rashly-r-has become moot; this basic purpose has been overtaken by the ban of Rabbeinu Gershom, which simply prohibited what the talmudic sages sought to dis-courage. The ketubah neither establishes nor effects nor modifies any eco-nomic rights in cases of divorce without fault in places ~vhere herem de-Rabbeinu Gershom is accepted.68 ln situations where here~ de-Rabbeinu

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Gershom is not applicable due to misconduct, fault is always found, nd thus no ketubah payment is mandated by Jewish law. The only practical ase where the ketttbah is relevant is where the husband's fault generates the grounds for divorce, and the wife seeks a divorce grounded in her husba d's fault and seeks payment of the ketubah.69 Although it might have some v lue in cases of widowhood as well as a matter of theory, normally it does n t. 70

Consider the observation of Rabbi Moses Feinstein on this matter. He states:

The value of the ket11bah is not known to rabbis and decisors of Jewish law, or rabbinical court judges; indeed we have not examined this mat-ter intensely as for all matter of divorce it has no practical ramifica-tions, since it is impossible for the man to divorce against the will of the woman, [the economics of] divorce are dependent on who desires to be divorced, and who thus provides a large sum of money as they wish to give or receive a divorce.7 1

Elsewhere Rabbi Feinstein writes:

I will write briefly the value of the ketubah in America nowadays, for use in those circumstances where it is needed. One should know that in divorce there is no place for evaluating the ketubalz, since the ban of Rabbeinu Gershom prohibited a man from divorcing his wife without her consent. Thus, divorce is dependent on who wants to give or receive the get and who will give or receive money as an inducement. But it is relevant to a widow, or a yevamah [levirate widow] who wishes to have l;alitsah [levirate separation] done, and who wishes to have her ket11bah paid from the assets of the brother who is doing l;alitsah [her deceased husband] .72 Only infrequently, in farfetched cases, is it relevant to divorce, such as when she agrees to be divorced, only if she is paid the amount owed by her ketubah73

A simple example from commercial law helps explain the point of Rabbi Feinstein in divorce law. Suppose someone owns a painting that anoth r likes. The fair market value of this painting is $100. For how much must t is owner of the painting sell the painting to the one who wishes to buy it? T e answer is that Jewish law does not provide a price. The seller need sell ito ly at a price at which he or she is comfortable selling it, and the buyer need b y it only at a price at which the buyer is comfortable buying it (so long as th y are both aware of the fact that the fair market value is $100). The same is

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true for a divorce, Rabbi Feinstein posits, after the ban of Rabbeinu cbrshom absent a finding of fault-neither party needs to consent to divorcb unless he or she agrees to a financial arrangement or agrees to go to a ra~binical adjudication about this matter, and the rabbinical court then res~lves the matter in accordance with the rules of compromise or equity.74 If t~ey can-not work out a deal, or agree on a compromise or a process of compromise, divorce cannot be compelled.

THE ENFORCEABILITY OF THE KETUBAH IN AMERICAN/ LAW

The enforceability in American law of the ketubah payment is a m~tter that has rarely been litigated, and there is not a single case where a cpurt has enforced the ketubah obligation to mandate a payment. Consider, f9r exam-ple, in 1974 a widow tried to collect the amount of the ketubah givtn by her late husband and claimed that the ketubah superseded her prior waiver of any future claims pursuant to a prenuptial agreement between h~rself and her husband. The ketubah had been signed after the prenuptial a&reement, and thus, if it were a valid contract, would have superseded it. Iry denying her motion, the New York Supreme Court concluded that "ev~n for the observant and Orthodox, the ketubah has become more a mattdr of form and a ceremonial document than a legal obligation."75 1,

Although in a subsequent case the New York Court of Appeal~ enforced a provision of the ketubah pursuant to which the parties agreed t~ arbitrate future marital disputes before a beitdin, the court did not revisit the issue of the enforceability of the financial obligations included in the ketub~h?6 While it is true that in dicta, an Arizona court suggested that financial ~bligations described in a ketubah could perhaps be enforceable if describe~ with suf-ficient specificity,77 the practice has never been to seek to confotm the text of the ketubah to the contract requirements of American law.78 The descrip-tion of the financial obligations-in zuzim and zekukim, whijch require determinations of Jewish law to ascertain the proper value-ai·e not con-sidered sufficiently specific to be enforceable.79 So too the ab$ence of an English text (where either the husband or wife are not fluent in ~ramaic and Hebrew) and the absence of signatures of the husband and wife Mrould seem to make the ketubah void as a contract in American law. 80 ·

When might a ketubah be enforceable in the United Statd? When it is executed in a country (such as Israel) where it is recogniz~d as legally enforceable. This is because American conflict of law rules mig~t determine that the rules governing the validity of the ketubah are found inj the location of the wedding, where the ketubah was a legally enforceable d4curnent.81

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To the best of our knowledge, no American court has ever enforced t e financial component of a ketubah written in America in cases of divorce r in cases of death.

CONCLUSION

The ketubah serves many valuable purposes, such as requiring the husba to affirm and memorialize his Jewish law obligations to support and hon r his wife. Even though these obligations would be applicable even in t e absence of the ketubah, the existence of a formal document memorializi g these obligations serves as an important pastoral reminder of their vital r le in a successful Jewish marriage. This chapter has focused, however, on t e purpose and value of the ketubah in cases of divorce, which is where tl e Talmud most clearly saw the need for a ketubah. Not surprisingly, it is n cases of divorce where matters are most contested.82 This chapter summ -rizes the value, worth, and enforceability of the ketubah in cases of divor e.

There are multiple views regarding how to assess the value of the 200 z tz and 200 zekukim described in the standard form ketubah as payable by t e husband (or his estate) upon divorce or death. The breadth of the dispute from a few hundred dollars to many thousands-is quite astonishing. Wh t is the normative practice is also in dispute, and is hard to determine.

Additionally, as Rabbi Feinstein points out, since women today cann t be divorced against their will due to the famous eleventh-century enactme t of Rabbeinu Gcrshom, a divorce today requires the husband to placate is wife with an amount that she would deem sufficient. Therefore, a worn n can effectively "negotiate" for an amount greater than the value of t e ketubah if her husband wishes to divorce her. Thus the calculation oft e amount of the ketubah only becomes relevant in very limited cases, such s when both parties expressly stipulate that they want the payment amou 1t

from the husband to the wife upon divorce to be determined solely bas d on a rabbinical court's evaluation of the ketubah.

Hence, most couples never expect that the ketubah will actually be us d for collection purposes and in fact the majority of Jewish women who ha e become divorced (or widowed) do not seek to collect their ketubah but rat er use other channels to settle their claims. It is, therefore, virtually impossi le to ascertain an established custom or practice with respect to the valuati n of the ketubah in America.83 Given these questions, it is not surprising t at there is no clear halakhic answer relating to the value of the ketubah.

These three observations-that the ketubah's value is low (and in d s-pute), its significance as a matter of Jewish divorce law limited, and ts

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enforceability in American law nearly impossible-also provide a posture to understand some of the cases of recalcitrant husbands (' ·ggun) in the Jewish community. Essentially, modern American law permits nilateral no-fault divorce. One spouse may seek divorce without the consen of the other, force a financial resolution of the marriage, and compel a di orce against the wishes of the other spouse. Jewish law did not permit unil teral no-fault divorce after the ban of Rabbeinu Gershom was accepted ab uta millen-nium ago, as it viewed the "right" of the husband to discard is wife with-out her consent to be religiously improper and thus banned it, just as the reverse is prohibited as well. What then happens as a matter o Jewish law in cases of Jewish divorce where there is no discernible fault? Eit er the parties sign a prenuptial agreement prior to marriage governing such cases, or they settle matters themselves after they realize that divorce is p oper, or they agree to go to a beit din for compromise, or they do not g t divorced. 84

Solving the problems of agunot in a manner that repeals th ban against forced divorce is contrary to Jewish law.85 Of course, there a e many occa-sions where the community can and should impose social anctions and other noncoercive pressure on a person who will not give o receive a get when the marriage is functionally over, so that he will agree t give a get.86

The ideal resolution to all disputes, but particularly div rce, is for the parties to mediate their differences amicably and come to a n utually agree-able settlement or compromise with respect to all issues.87

NOTES

1. Ketubot is the plural of ketubc1h. 2. In cases where the woman was previously married or h s converted to

Judaism, the amounts written in the ketubah are generally 100 uz for the base amount and 100 zekukim for the additional amount.

3. See, for example, Babylonian Talmud (hereafter BT) Ketubot 1 b; Maimonides (1135-1204),Laws ofMarriage(Ishut) 10:7; Rabbi Joseph Karo (148 1575), Shul~zan 'Arukh, Even ha-' Ezer 66:6.

4. A pidyon ha-ben (ceremonial redemption of the firstborn) re uires five sela'im or shekalim, and in each sela '/shekel there are four dinarim; a dinar nd a zzzz are the same amount. See "Dinar," Encyclopedia Talmud it, 7:398-406.

5. "Dinar," Encyclopedia Talmudit, 7:398-406. 6. Rabbi Abraham Isaiah Karelitz (1878-1953 ), lfazon Ish, Eve ha-'Ezer 66:21,

notes that much silver sells in the modern marketplace as only 84 p rcent silver, with the rest being additives, and thus one has to add 16 percent additional weight to ster-ling silver to make it "pure." In addition, Hazon Ish notes that on needs to factor the costs of delivery and taxes into the husband's payment obliga ions. In modern

PRENUPTIAL AGREEMENTS l-05

America, silver sells in a number of different purity grades; pre-1965 coin$ are 90 percent silver and thus sell at a discount to the spot silver market for pure sliver. Other silver coins are only 40 percent silver and thus sell at a deeper discount. for a discussion of the modern silver market, see WW\v-.certifi.edmint/silver.htm.

7. See Rabbi Binyamin Adler, Sefer ha-Nisu'in ke-Hilkhatam (Jerusalem, 1983), 11:80-83.

8. Rabbi Karelitz himself posits that 200 zuz is worth only 570 grams of silver, or a little more than a pound.

9. Indeed, this is the standard and unchangeable text of the ketubah for A~hke­nazim, increasing its universality and thus its enforceability. See "Nusal.1 ha-Ketubah;' Otsar ha-Posqim, Even ha-'Ezer, 19:57-103.

10. Rabbi Moses Feinstein (1895-1986), Igrot Mosheh, Even ha- 'Ezer 4:91-92. ll.Ijazon Ish, Even ha-'Ezer 66:21. 12. Based on the comments of Rabbi Elijah of Vilna (Gra) to Shull).an 'Arukh,

Yoreh De'ah 305:3. 13. Rabbi Avraham ijayyim Na'eh, Shi'urei Tomf1 50:44. 14. This amount is also consistent with, although perhaps not identical tq, the

view of Rabbi Samuel ben David Moses ha-Levi (c. 1625-1681), author of the Na~wlat Shiv'(Jh.See Adler, Ha-Nisu'in ke-Hilkhatam 11:97. (Nabalat Shiv'ah 12:49 is sometimes quoted as holding that 200 zekukim is worth 2.5 times the value of 200 zuz, but probably held that 200 zekukim is closer to 3. 75 times the value of 200 zr1z.

15. See Rabbi Aryeh Kaplan, Made in Heoven: A Jewish Wedding Guide (iNew York, 1983), 113.

16. The Israeli work Ha-nisu'in ke-Hilkhatam 11:97 (n. 200) avers that such h the practice of the Israeli rabbinical courts.

17. Rabbi Samuel ben Uri Shraga Feibsuch (seventeenth century), Beit Slmw'el commentary to SlwlJ:um 'Arukh, Even ha- 'Ezer 66:15.

18. See Rabbi Joshua Falk Kohen (c. 1555-1614),Derishah portion of Beit Yt~m'cl commentary to Arba 'ah Turim, Even ha-'Ezer 66:3. See generally Adler, Ha-Nisu'in ke-Hilkhatam 11:98.

19. M. Peah 8:7 (in the standard Mishnah, it is 8:8). 20. For an elaboration on this, with a full discussion of the many sources supporting

this view, see Rabbi l:layim P. Benish, SeferMidot ve-Shi'urei IiJrah (Bene-Berak, 1,986), 398-405. He explicitly states that in talmudic times 200 zttz was a year's suppqrt.

On a more theoretical level, there is a claim to be made that 200 zuz is nqt the amount needed for one year's support, but rather is the amount of principal ndeded to generate yearly income equal to a year's support. Thus a person with no skill~ and no job is considered poor if he or she has less than 200 zuz and may take ch~rity, whereas a person with 200 zuz is never poor, even if he or she has no skills; Sh~tlbmz 'Arukh, Yoreh De'ah 253:1-2. This approach also explains why a widow is enbtled to either perpetual support out of her husband's estate or her ketubah payments-the two serve the same purpose and are equal to the same amount; Shulbmz 'Arrukh, Even ha- 'Ezer 93:3. However, these writers have found not a single halakhic au~hor­ity who accepts this valuation of 200 zuz for the purposes of appraising the ketjtbah.

206 ]ONATHAN REISS AND MICHAEL]. BROYDE

21. Commentary of Rabbi Samson of Sens (Rash mi-Shants, c. 1150-c. 1230) and commentary of Rabbi Obadiah Bertinoro (Bartenura, c. 1450-c. 1516) toM. Peah 8:8.

22. This view is clearly contemplated by Rabbi Falk in his glosses to the Shulhan 'Arukh entitled Sefer Me'irat 'Enayim (known by its Hebrew acronym, Sema'), I:Ioshen Mishpat 88:2, and is perhaps accepted as correct by Rabbi Shabtai ben Meir ha-Kohen (1621-1662), Siftei Kohen (Shakh), Yoreh De'ah 305:1. (See also Fa~k's Derishah, f:Ioshen Mishpat 88, where he elaborates on the above Sema '.) See Aryeh Leib ben Joseph ha-Kohen Heller (c. 1745-1813),Avnei Milu'im 27:1, who avers that Rashi and Ritba accept this view. (But see lfazon Ish, Even ha-'Ezer 148, who posits that the Ritba rejects this view.) See also Rabbi Isaac ben Sheshet Perfet (1326-1408), Responsn of Rimsh 153, who also poses this question but rejects the conclusion of the Sema'.

23. Indeed, there are significant halakhic authorities who suggest that this is the rule for most amounts found in the Talmud, such as the perutah or th~ dinar, which should be linked to the price of food for a day, or week or month or year. See Sema ', l:Ioshen Mishpat 88:2, who states that "according to this, nowadays, }'\'hen one can purchase with a perutah only a very small amount, according to Jewish law we should say that a woman cannot marry with a pemtah." A perutah in talmudic times was one-thirteenth of the amount a person needed to support himself for a day; see Benish, Midot ve-Shi'urei Torah, 401.

24. The mean cost of living in Switzerland is 1.67 percent of the m~an cost of liv-ing in the United States ($167,000 in Switzerland purchases that which $100,000 purchases in America). The cost of living in Atlanta, Georgia, is lessi than half the cost of living in Manhattan.

25. One kilogram equals 32.15076 troy ounces. One gram equals 0.032l5 troy owKes. 26. See lfazorz Ish for an explanation. In order to actually purchase ~nd take deliv-

ery of a 100-ounce silver bar one needs to add between 65 and 85 ce~1ts per ounce delivery fee plus sales tax of 6 percent. (Verified by operator at Certified Mint and noted as correct at http:/ /certifiedmint.com. For this chapter, we assurhe an average of 75 cents.) '.

27. Representing the base amount of the ketubah, which is eqt~ivalent to 50 shekalim, which would be ten times the amount of the value of pidyo!iJ ha-ben.

28. See also Piske-din shel bate hn-din hn-rabaniyim be-yisrael (Pl.PR, rulings of Israeli rabbinical courts), 11:362. According to these values, the current IYjonetary value of the 5 slzekalim that need to be given for pidyonha-berz, which is varioitsly evaluated at either 96 grams, 100 grams (or 101 grams of pure silver), would be b¢tween $14.20 (96 grams of silver) and $14.94 (101 grams of silver; 100 grams of silv¢r would cur-rently be $14.79). Since the 5 shekalim for pidyon ha-ben are equiv~lent to 3,840 perutotjt follows that the technical value of a perutah is currently less thar} half a penny.

29. And would vary depending on location; see note 24. If the possibility of 200 zuz being equal to perpetual support were seriously considered, the a1inount would be even more; but see the end of note 20.

30. See Adler, Ha-Nisu'in ke-Hilkhatam 11:77-83. 31. See the Israeli rabbinical court in PDR 11:362 (5740) in a pesa1 din (ruling)

cosigned by Rabbi Ovadia Yosef and Rabbi Joseph Kapach. See, (or example, Yevamot 89a.

PRENUPTIAL AGREEMENTS 207

32. Letter of Rabbi l:fayyim Gedalia Zimbalist dated Rosh f:lodesh Menab¢m Av 5759 (July 14, 1999).

33. See the dissent by Rabbi Mordechai Eliyahu in Israeli rabbinical court irl PDR 11:362 (5740). I

34. Indeed no Ashkenazi decisor with the stature of these two authoriti{)s has argued with them.

35. This is explicitly noted as a significant factor by Rabbi Samuel de Mttdina (1506-1589), Responsa of Maharashdam, Even ha-'Ezer 187. Indeed, there is an bpen question as to whether one says that the one who is seeking to enforce a contra~t has the weaker hand in cases such as this where the woman had no hand in the cra\fting of the document; see for example, Rabbi Isaac Ell)anan Spektor ( 1817-1896), l'{nbal Yits~zak 61:4, who notes that there are cases where a document is constructed ag~inst the one who wrote it, and not against the one who is seeking to use it. ·

36. See Rabbi Moses Feinstein,Jgrot Mosheh, Yoreh De'ah 1:189-191, where Rfibbi Feinstein clearly endorses the view that the ketubah has to be an amount Huge enough to deter divorce no matter what the price of silver really is. Indeed a pl~usi­ble argument can be advanced that Rabbi Feinstein fundamentally accepts the view that 200 zuz is a reference to a year's support, and that Rabbi Feinstein wrote his responsum (teshuvah) because the rapid increase in silver prices at the timd the responsum was written (c. 1980) had created the anomalous situation where the v~ue of the 200 zekukim of silver in the ketubah exceeded the cost of supporting a $in-gle woman for a year (silver peaked in 1980 at $25 an ounce for pure silver; thus 100 pounds of pure silver delivered to the door would have been worth more than $40,000, more than one year's support for a single person in 1980). According to this position, Rabbi Feinstein's view is that one pays the greater of either (I) the valu¢ of 100 pounds of silver or (2) the cost of supporting the woman for one rear.

37. This view stands in sharp contrast to the historical Anglo-American common law view, which treats a private contract to marry or divorce as the classical example of an illegal and void contract; the Catholic view, which treats marriage and ann~l­ment (divorce) as sacraments requiring ecclesiastical cooperation or blessing;

1or

the European view, which treats marriage and divorce as an area of public law. This should not be misunderstood as denying the sacramental parts of marri~ge (of which there are many); however, the contractual view predominates in t~e beginning-of-marriage and end-of-marriage rites. This is ably demonstrated by Rabbi}. David Bleich, "Jewish Divorce: Judicial Misconceptions and Possible Mea~1s of Civil Enforcement," Connecticut Law Review 16 (1984): 201.

38. Even though such an activity validly marries the couple; Rav mangid a-mrl.'n de-mekadesh be-vi'nh, BT Yevamot 52 a; Slwlhan 'Arukfz, Even ha- 'Ezer 26:4.

39. Shull;an 'Arukh, Even ha- 'Ezer 26:4. 40. Marriages entered into without consent, with consent predicated on fraud ~r

duress, or grounded in other classical defects that modern law might find mote applicable to commercial agreements are under certain circumstances void in the Jewi~h tradition. For more on this, see Michael J. Broyde, Marriage, Divorce, and the Abandoned Wife in Jewish Law: A Conceptual Approach to the Agwzah Problems in America (Hoboken, N.J., 2001),Appendix B, "Error in the Creation ofJewish Marriages."

208 JoNATHAN REISS AND MICHAEL}. BROYDE

41. There is a dispute as to whether this requirement is biblic I or rabbinic for a first marriage; all agree it is rabbinic for second marriages; see Sh !ban 'Arukh, Even ha-'Ezer 65.

42. For reasons beyond the scope of this chapter, this agreem 1t is not signed by either the husband or wife, but merely by witnesses. This is so bee use the Jewish tra-dition mandated generally that all contracts need not be signed by th parties but merely by witnesses, so long as the parties give their assent to the conditions ound within them.

43. BT Yevamot 89a; Ketubot 11a. 44. There is considerable evidence that the presence of a ma datory prenuptial

agreement provided considerable leverage for women to add p ·ovisions to their prenuptial agreements regulating other aspects of their marriage. I deed, 2,000-year-old prenuptial agreements found in the archives (genizot) condi ion the marriage on the husband's waiver of his right to marry another at some fu ure date, contrac-tually limiting the husband's biblical right to be polygamous. Se Rabbi Abraham I;Iayyim Freimann, Seder kidushin ve-nisu'in a/:zare /:latimat ha-tal nud: Me/:zqar his-tori-dogmati be-dine yisra'el (Jerusalem, 1944); and Mordechai Akiva Friedman, "Polygyny in Jewish Tradition and Practices: New Sources from t e Cairo Geniza," Proceedings of the Americnn Academy of jewish Research 49 ( 1982): 55.

45. The wife, however, needs to be aware of the divorce, even as she does not con-sent. See Maimonides, Laws of Divorce (Gerushin) 1:1-3.

46. See Shul~an 'Arukh, Even ha-'Ezer 119:6; and Rabbi Mos s ben Isaac Lema (c. 1605-1658), I;Ielqat Mehoqeq 119:5 for a presentation of the ifferent views on this matter.

47. As noted above, the Ashkenazic custom did just that an added the term 200 zekukim to the ketubah.

48. Unless she had not yet had a child with him, which was a form of fault on his part; Ta 'a nat ba 'inah butra le-yddah, see Yevamot 65b, Shulum 'Arukh, Even ha-'Ezer 154:6-7; and Rabbi Yel)iel Mikhel Epstein (1829-1908), A ukh ha-Shulbmz, Even ha- 'Ezer 154:52-53.

49. BT Yevamot 65a; but see view of Rav Ammi. 50. See "l:Ierem de-Rabbeinu Gershom;' Encyclopedia Talmudit 17:378. 51. See Rabbi Asher ben Yebiel (Rosh, 1250-1327), Responsa Rosh 43:8, who

indicates that one of the consequences of this model is that wome (and men) will not be able to leave a marriage when they wish. See also his respo sum 42:1, which indicates that the basic purpose of the ban of Rabbeinu Gershom s to create a bal-ance of rights between the husband and the wife.

52. This insight is generally ascribed to Rabbeinu Tam (1100- 171) in his view of ma'is 'alai; see Tosafot, Ketubot 63b, s.v. aval. This view fits l gically with the view of Rabbeinu Gershom, who had to prohibit polygamy and c erced divorce, as well as divorce for easy fault, as Maimonides's concept of repugn ncy as a form of fault is the functional equivalent of no fault, identical in resul to the geonim's annulment procedure.

But see Rabbi Meir ben Barukh (Maharam, 1215-1293) of Rot enberg, Teslwvot Mahamm me-Rutenberg 4:250, who indicates that Rabbeinu Gersho 1 also subscribed to the general view of the geonim who held, unlike Rabbeinu Tam, th t a woman could

PRENUPTJA L AGREEMENTS 20~ I

compel divorce with an assertion of repugnancy (ma'is 'alai). Rabbi Profess 'r Elimelech Westreich makes the same assumption in his recent work Temurot b _ ma·amad ha-ishah ba-mishpat ha- 'ivri (Exchanges on the [Jewish] Woman's StatL in Israeli Law) (Jerusalem, 2002 ), 71-73, in which he points out that the views of th geonim in general and those ascribed to Rabbeinu Gershom are often interchangeabl . Westreich poses the question of how these two positions-prohibiting coerced divorc and effectively permitting unilateral no-fault divorce through an assertion of repug nancy ( ma'is 'alai}-could be held at one time and place, especially given th responsum of the Rosh (42: 1) indicating that according to Rabbeinu Gershom's model, a man could compel divorce in the same circumstances in which it could be compelled by a woman (so that not only a woman could compel a divorce through an assertion of ma'is 'alai, but a man could as well). Westreich offers two answers:

1. Only one type of repugnancy (ma'is 'alai) was considered grounds for divorce according to the geonim but not another type (which was even softer fault) (ba 'ina leih u-metsa 'a rna leih), so there still would be cases where divorce could not effectively be coerced even according to the geonim, thus generating the need for the separate taqqanah against coercion with respect to these cases.

2. The claim of repugnancy (ma'is 'alai) did not really lead to no-fault divorce, as it needed to be substantiated through strong circumstantial evidence; in cases where a husband wanted a divorce but did not have very strong cir-cumstantial evidence supporting his claim of repugnancy (ma'is 'alai), there would still be a need for the decree against coerced divorce.

Both of these solutions are obviously difficult, in that they advance an explana-tion of the view of the geonim that is at tension with the common explanation. \Ne suggest that the simpler explanation is that the nascent views of Rabbeinu Gershom are incompatible with the established views of the geonim and this became dear over time. (Perhaps there is room for another approach also: that, contrary to the position of the Rosh, the geonim were prepared to allow a woman to demand divorce based on virtually any grounds, but not a man, who needed a reason. The basis for this argu-ment would be that ( 1) Gittin 89a-b dearly circumscribes the circumstances in which a man is entitled to a divorce but does not explicitly limit the circumstances where a woman may seek a divorce; (2) women were seen as more vulnerable and thus in need of more protection than men. For an example of this, see Rabbi Feinstein, !grot Mosheh, Even ha- 'Ezer 1:80; and Rabbi l:Iayyim Ozer Grodzinsky (1863-1940), AIJi'ezer 1:27, both of whom argue that kiddushei ta 'ut may be used more quickly by women than by men, as they are otherwise without any option in some cases.

53. Absent the prohibition on polygamy, the decree restricting the right to divorce would not work as well, as the husband who could not divorce would simply marry another woman and abandon his first wife. This prevented such conduct.

54. In which case, the value of the ketubah need not be paid as a penalty for mis-conduct imposed on the woman. What exactly is hard fault remains a matter of dis-pute, but it generally includes adultery, spouse beating, insanity, and impotence/ frigidity; see Slwll;an 'Arukl1, Even ha-'Ezer 154.

210 jONATHAN REISS AND MICHAEL J. BROYDE

55. Maimonides, Ishut 10:10. 56. Shul(um 'Arukh, Even ha- 'Ezer 177:3. 57. Consider a very simple question in such cases: How much mu t husband pay

wife to induce her consent? The answer to that question depends o the situation of the parties-the ketubah neither helps nor hinders the negotiatio s.

58. This is a bit of a simplification, since in cases of fault a woman would have to go to a beit din (rabbinical court) to seek the right to compel the husb nd to divorce her, whereas the husband could, on a finding of fault by a beit din, divo ce her against her will directly. This difference is one of mechanism, however, and ot of rule.

59. The case of rape discussed in the text; see note 56. 60. Even ha-'Ezer 66:3. 61.1felqat Meboqeq 66: 18; Beit Shnw'e/66: 11; Bi'ur Ha-Gm 66:17 62. Maimonides,Ishut 10:10. 63. Even ha-'Ezer 66:10. 64. See Rabbi Yitsbak Ayzik (Isaac) Shor (d. 1776), To/dot Adam, ven ha- 'Ezer

66:3. See also Rabbi Refael Yosef ben Rabi (d. 1795), Derekh a-Melekh on Maimonides, Ishut 10:10. Rabbi I:Jayyim ben Barukh Lubetski, 11 safot ljayyim (Vilna, 191 l ) 2:10, notes another difference, which is that a man who iolates be rem de-Rabbeinu Gershom is not forced to remarry his ex-wife, whereas en the rapist divorces his victim against her will, he is forced to remarry her.

65. In Jewish law, a rabbinical court can compel support of one spo se by another even absent divorce.

66. See, for example, Rabbi Mosheh Shternbukh, Teshuvot ve-Ha 1hagot, 2d ed. (Jerusalem, 1992), no. 760. But see Arukh ha-Shunum, Even ha-'Ezer 177: in the paren-theses and the last line; Rabbi Jacob Alfandari (c. 1620-1695), Mutsal Me Eish 21; Rabbi David Horowitz, She'elot u-Teshuvot Qinyan Torah ba-Halakhah (Strasb rg, 1976-), 14.

67. One of the common questions encountered is whether a couple may continue to live together when the kewbah is misplaced and cannot tempora ily be found. Sometimes, even at the end of the wedding itself, the newly married ouple cannot find the ketubah. A number of different factors, combined, could pr vide grounds for the couple to be alone together even in these circumstances until replacement ketubah can be written. Besides the view of Rabbi Isserles that nowa ays a ketubah is not needed, these other factors include the following:

1. Many halakhic authorities rule that the ketubah is in force af er the qinycm (legal transfer) effectuated before the wedding ceremony, eve1 if no written document is actually present, as the ketubah is merely a proo of a ketub(lh, but the actual witnesses are also sufficient ( Otsar ha-Posqim 66 1 [7]).

2. Once it is known that there was a ketubah, and witnesses will at est to the fact that there was a ketubah and they signed it, it is as if the wife ha the ketubnh. See Even ha-'Ezer 66:1 and Otsar ha-Posqim 66:3(22 [2 ]). (In the United States our practice is to read the ketubah out loud; thus there are man witnesses to its existence.)

3. In Israel, the rabbinical courts require that a photocopy of the k tubah be kept on file in the court system. In America, an actual photograph of he kctub(Ih is

PRENUPTIAL AGREEMENTS 211

not unusual. (See Shternbukh, Teshuvotve-Hanhagot 1:760.) (While a p oto-copy or photograph likely does not allow for the enforcement of the ke tbah, it does provide evidence of the factors previously described.)

4. The husband can remit to his wife for safekeeping the monetary value ketubah in lieu of the right to collect (Shul~zan 'Arukh, Even ha- 'Ezer 6

5. Permitting the couple to be alone together (such as for yi~lltd) is per according to many authorities in all circumstances; Rama, Even ha- 'Ezer 66:1.

6. Some rishonim are of the view that a ketubah is imposed as a conditi n of marriage by the talmudic rabbis (tenai beit din), and thus even abs nt a ketubclh, it is present (Arba 'ah Turim, Even ha- 'Ezer 66, and Rabbi I:Ia im ben Joseph Toledano (d. 1848), Uoq u-Mishpat 229 [p. 67}).

These matters require a case-by-case analysis by an expert in Jewish law. worthwhile review of these issues, see Rabbi Joseph E. Fried, Ohel Yosef (New 1902), Even ha-'Ezer 22, and Otsar lw-Posqim66:2-3.

68. Such as Israel, America, Canada, Europe (both east and west). Places it was not accepted include Egypt, Iran, Iraq, Morocco.

69. Since the central purpose of the ketubah was not to allow the husband t ily divorce his wife, Rabbi Isserles might not have considered these matters trul sig-nificant insofar as the main purpose of the ketubah was to protect the woman rom divorce in cases where she desired to stay within the marriage.

70. This is so because widows are entitled according to Jewish law to either per-petual support from the estate or their ketubah payment as they prefer; see Sht l~wn 'Antkh, Even ha-' Ezer 93:3 and Rabbi Ya 'akov Yesha 'yahu Bioi, Pitbei lfoslzen, o!. 8 (Jerusalem, 1982), 11:1-3. Since the former is much more valuable than the I tter, no reasonable person would exercise her ketubah rights in case of widowhood and thus the proper evaluation of the ketubah is practically irrelevant.

7l.lgrot Mosheh, Even ha- 'Ezer 4:91 (this responsum was written in 5740/1 80). 72. The formulation used in this responsum is different from Igrot Mo heh,

Even ha-' Ezer 4:91, where, with regard to the rights of the widow, Rabbi Fein tein posits that:

Even widows, even when they are not the mothers of the surviving children, i most cases there is a will, and there is also secular law [i.e., spousal offset] which many people wish to actually use [to resolve this dispute].

73. Igrot Mosheh, Even ha-'Ezer 4:92. This responsum was written in 1982. 74. There are provisions in Jewish law to resolve a matter based on equit ble

principles and compromise, and such is what a rabbinical court does in these c ses, unless secular law provides a basis for directing the answer and is applicab e in this case. (A number of halakhic authorities seem amenable to the practice of l ok-ing to secular law on these matters; see Rabbi Judah Loeb Graubart (1861-19 7), ljavalimba-Ne'imim, 2d ed. (Toronto, 1968), Even ha-'Ezer 55, which rule, in the alternative, that secular law provides a woman with financial rights aga'nst her husband (or his estate). Rabbi Moses ben Joseph di Trani (1505-1585), lv, bit

l

212 JoNATHAN REISS AND MICHAEL]. BROYDE

1:309, is another such responsum. For a similar type of claim, s~e Rabbi Yitshak Isaac Liebes, Responsa beit a vi (New York, 1979 ), 4:169. Similar reasqning is advan~ed as plausible in Rabbi Moses Feinstein's ruling (!grot Mosheh, Eveni. ha- 'Ezer 1:137) that the wife's waiver of past-due support payments mandated ~y secular law, in return for the husband's issuing a get, is a form of permissible coercion that does not invalidate the get (create a getme'useh situation). This waiv~r of a financial claim is valid coercion only in a case where the woman's claim ~o the money is halakhically valid, as the wife is entitled to these payments, or an ~mount roughly equal to them, through dina de-malkhuta dina (the principle tMt the law of the land is the law). Indeed, Rabbi Feinstein implies that this is the niore likely result in his analysis found in !grot Mosheh, Even ha-'Ezer I :137 and Eve~ ha-'Ezer 4: 106; see also R. Tsvi Hirsch Eisenstadt (1813-1869), Pit~zei Teshuva/1,,, Even ha- 'Ezer 134:9-10.

75. In re Estate of White, 356 N.Y.S.2d 208, at 210 (NY Sup. Ct., ~974). 76. Avitzur v. Avitzur, 459 N .Y.S.2d 572 (1983 ). ' 77. Victor v. Victor, 866 P.2d at 902 ( 1993). 78. See, for example, Hurwitz v. Hurwitz, 216 AD 362 (NY Appellatt;1 Division, 1928). 79. Whether or not the language of a ketubah forms a basis for qompelling a get

(Jewish writ of divorce) according to secular law doctrine is a question beyond the scope of this chapter. See, for example, In reMarriage of Goldman, ~54 N.E.2d 1016 ( 1990), in which an Illinois court came to the remarkable conclusiol\1 that the words "in accordance with the law of Moses and Israel" appearing in the ketubah created a contractual obligation to give a get. But see Aflalo v. Aflalo, 295 jN.J. Super. 527 (1996) (rejecting a similar argument) and Morris v. Morris 42 D.Il,.R3d 550 1973 (Manitoba, CA, Ct of Appeals). For more on this, see Rabbi Irvint A. Breitowitz, Between Civil and Religious Law: The Plight of the Agunah in A1iurican Society (Westport, Conn., 1993), 50-55. '

80. Some rabbis have devised a legitimate solution to translate tije ketubah doc-ument into English so that the parties can be held accountable forjunderstanding its meaning by inserting certain very concrete obligations and un~ertakings that could be held to be enforceable with respect to the parties. This approach is similar to the practice discussed above of couples entering into separate enforceable prenup-tial documentation setting forth their specific expectations and comi~itments in the event of a divorce or marital separation.

81. This principle was first noted in Montefiore v. Guedalla 2 ¢h 26 Court of Appeals, England (1903 ), where a British court enforced the ketu"{j,ah of a Sefardi (Moroccan) Jew who had moved to England, since the law of Moro¢co would have enforced this ketubah. These same conflict of law principles could 'tvell enforce an Israeli ket11bah in America. It has been followed in many American ~ases where the parties were married in another jurisdiction; see Miller v. Miller 1281NYS 787 (Sup. Ct., 1911) and Shilman v. Shilman 174 NYS 385 (Sup. Ct., 1918). ,

82. Happily married couples rarely seek adjudication in a rabbinic41 court of their financial obligations to each other, although a rabbinical court is, i~ fact, jurisdic-tionally authorized to resolve such disputes; see Shul~an 'Arukh, Even ha-' Ezer 70:1-4. (In contrast, American law does not authorize a court to rtsolve disputes

PRENUPTIAL AGREEMENTS 213

between a husband and wife except when divorce is expected; see McGuire 'v. McGuire, 59 N.W.2d 336 [Neb. 1953] and Leslie Harris and Lee Teitelbaum, Fmn~ly Law, 2d ed. [Gaithersburg, 2000], 45-60.)

83. Rabbi Zalman Nel;emya Goldberg, taking note of this problem, has recorp-mended that a dollar amount be inserted in the ketubah-just as Israeli ketubot oft~n include an explicit amount in Israeli shekalim or even dollars-so that in the evept the wife does register a claim pursuant to the ketubah, there will be no confusiqn concerning the proper amount to be paid. However, given the infrequency of cas~s in which parties intend to invoke the ketubah for financial purposes, a rnovemeht to accept such a proposal here in America is unlikely at present.

84. Couples nowadays often enter into a separate prenuptial agreement prorntH-gated by the Orthodox Caucus and the Rabbinical Council of America in conjunk:-tion with the Beth Din of America. The prenuptial agreement is an English-langua~e document, drafted in accordance with both Jewish and secular law specificatiOI~s, that provides for a specific dollar amount to be payable by a husband to a wife for support in the event of a marital separation until the couple is no longer rnarri~d according to Jewish law. Unlike what has become the practice with respect to the kctubah, the parties who enter into this document clearly comprehend that t)le financial terms of this document are meant to be enforceable. i

The question of whether couples may explicitly reference secular law as the ba~is for dispute resolution in their prenuptial agreement is the subject of an excha1~ge between Rabbi Zalman Nei)emya Goldberg (approves) and Rabbi Tzvi Gart~er (questions) in Yeshunm 11 (5762): 698-703. The Beth Din of America views su,th prenuptial agreements as proper, and a copy of such an agreement can be foun~ at www.orthodoxcaucus.org/prenuptial.html with explanation. For a further elabota-tion of this, see Broyde, Marriage, Divorce.

85. For more on this, see Broyde, Marriage, Divorce. . 86. Rabbeinu Tam as found in the Seferha- Yashar U1elek ha-tesll!lvot 24) first

noted that when a man refuses to give his wife a get, even when he is halakhidlly entitled to do so, it is within the power of a rabbinical court to sanction him in cases where his conduct is improper ethically. Such sanction is that community membhs ought to avoid him. Rabbeinu Tam states:

Decree by force of oath on every Jewish man and woman under your juris-/ diction that they not be allowed to speak to him, to host him in their homes,) to feed him or give him to drink, to accompany him or to visit him when he isi ill. In the event that he still refuses to divorce his wife, you may add further! restrictions upon him.

This approach is endorsed by many halakhic authorities (see Rabbi Ovadia Y~ef, Yabi'a Omer, 7:23 (Even ha- 'Ezer) (cosigned by Rabbis Yosef, Waldenberg, 4nd Kolitz) and remains used to this very day, through such mechanisms as ~he Rabbinical Council of America resolution directing that such individuals be excluded from the synagogue.

87. With respect to this point, see Rabbi Bioi, Pit~1ei lfoslwn 8:7( 12 ).